Engraving by J.B. Longacre after "miniature in possession of Mrs. Hollingsworth." Published in John Sanderson, Biog. of the Signers to the Declaration of Independence, Philadelphia, 1823. (Everett Historical/Shutterstock.com)

Thoroughgoing philosophical skepticism undermines liberty by denying that law can be reasonable, and that justice can be known.

With the US House of Representatives representing the people, and the US Senate representing the states (more so prior to the adoption of the 17th Amendment, but that’s another discussion), the US Congress is a recognizable extension of the “mixed-government” rationale for legislative bicameralism.

I am in strong agreement with the Derek Muller’s opposition to Progressive ideas to reform laws relating to campaign speech. He is particularly eloquent on why the Framers believed that limiting government was the best route to eliminating political corruption—the opposite of the Progressive agenda, which seeks to expand the state.
We can build on his insight by suggesting new kinds of limitations. For instance, Congress should create rules that impede not only all appropriation earmarks but also other kinds of special interest legislation. That kind of reform would go much further toward dispelling the appearance of corruption in campaign contributions…

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One cannot fault Professor Derek Muller, whose work I admire and respect, for taking a hard libertarian line against campaign-finance regulation in his Liberty Forum essay. After all, that misguided approach is built into the prompt of the question posed by Law and Liberty’s editors:
“Should a democracy through concerns about corruption in politics and equality…

Constitutions are more than struggles over meaning or changing social values as interpreted by judges. Constitutions are part of larger political struggles and reflect that conflicts and compromises in those larger fights. The conflicts of the New Deal ended with a compromise—one that promised an open political process in lieu of constitutional protections for the…

It was a privilege to participate in this month’s Liberty Law Forum. I am deeply grateful for the opportunity to contribute the lead essay, “The Case for More Money in Politics,” and I am humbled at the thoughtful commentary provided by Professors Rick Hasen and John McGinnis, and by John Samples, all of whose opinions…

In a previous post, I discussed my new paper, The Duty of Clarity. There I show that the original meaning of the Constitution requires a clear violation of its terms before invalidating legislation. But the Constitution also demands that judges use the ample interpretive methods available to clarify the precise meaning of our fundamental law. Both the obligations of clarity and clarification flow from the judicial duty, a duty that is an aspect of the judicial power granted under Article III of the Constitution.

My paper helps resolve the long standing debate about whether judges should defer to the legislature. Judges are empowered to use legal methods to clarify a constitutional provision, and if they can be made clear by these methods, the provision offers a basis to invalidate legislation. But if judges cannot disambiguate or eliminate vagueness, they have no authority to replace the legislature’s judgment with their own.

Since finishing a draft of the paper, I have come across one more powerful piece of evidence for this proposition. It is widely agreed among early Supreme Court justices that this duty of clarity exists and was binding on them. Nevertheless, I had not previously found any instance in which a justice claimed that the duty was the proximate cause of a refusal to hold legislation unconstitutional.

The case in which the duty of clarity appeared to be decisive was United States v. Ravara.

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